Objective Outline

Question 1

Under Pennoyer’s in personam jurisdiction, a judgment in P’s favor:

• -Would be __________ in all states
• -for the __________ of damages
• -may be ___________ until fully collected

Answer 1

1. binding
2. full amount
3. enforced repeatedly

Question 2

an abbreviated version of the Mullane notice rule is that __________ requires _________ and an __________.

Answer 2

1. due process
2. notice
3. opportunity to be heard

Question 3

To determine the content of state law in federal court, the Erie Doctrine directs that the court look to _________ and ______________. Persuasive (but not binding) authority is found in _______________ and ______________. Erie also allows courts to make an _________ as to state law.

Answer 3

1. state statutes
2. decisions from the state’s highest court
3. lower state appellate courts
4. federal court opinions on state law
5. educated guess

Question 4

Hanna v. Plumer also introduced the concept of the “twin aims of Erie,” which are to (1) discourage ___________, and (2) avoid the ________________.

Answer 4

1. forum shopping

2. inequitable administration of the laws

Question 5

One example of a common law choice of law rules is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the _____________ to choose the governing law. This rule applies except where there is a ______________, or where the action is based on contract that contains a __________________.

Answer 5

1. most significant relationship test
2. statutory choice of law rule
3. valid choice of law clause

Question 6

In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of _________________.

Answer 6

the state in which the federal court sits

Question 7

In federal court, D’s answer must respond to each paragraph of P’s complaint with one of the following:

a. __________
b. __________
c. statement that defendant _______________

Answer 7

a. admission
b. denial
c. lacks sufficient knowledge to respond

Question 8

F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a _____________, and that the pleading is (1) not being presented for any ___________; (2) ______________ or a _____________ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by _____________, or will likely be after a reasonable opportunity for discovery. ___________ must be warranted on the evidence or based on a reasonable lack of information or belief.

Answer 8

1. reasonable inquiry
2. improper purpose
3. warranted by existing law
4. nonfrivolous argument
5. evidence
6. Fact denials

Question 9

Pleadings may be amended to add new _________, and new ________ or __________.

Answer 9

1. factual allegations
2. claims
3. causes of action

Question 10

If P presents evidence on an unpleaded claim during trial and D fails to object, that unpleaded claim will be valid if the court grants P’s ____________.

Answer 10

Motion for Trial Amendment

Question 11

Until recently, most state courts used code pleading, which required P to plead __________ relating to every element of his claim.

Answer 11

ultimate facts

Question 12

F.R.C.P. 13(a) requires defendant to assert any opposing claim against P that _________________ that is the subject matter of P’s claim. This is known as a _____________. If D fails to assert such a claim, he is _______ from raising the same claim in a later lawsuit.

Answer 12

1. arises out of the transaction or occurrence
2. compulsory counterclaim
3. barred

Question 13

Exceptions to the requirement of asserting the claims discussed in the preceding question include:

a. where D _____________ of P’s claims prior to filing an Answer
b. where the counterclaim has not ____ or _____.
c. where the counterclaim requires an additional party over whom the court ______________.
d. where the counterclaim is the subject of ______.
e. where P’s actions is not based on ______________ over defendant (i.e. an ____ action)

Answer 13

a. wins a dismissal
b. arisen; matured
c. lacks personal jurisdiction
d. another pending action
e. personal jurisdiction; in rem

Question 14

Permissive joinder allows any party to join ______________ against __________.

Answer 14

1. unrelated claims

2. existing parties

Question 15

In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be _______ the P’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an __________ claim.

Answer 15

1. related

2. unrelated

Question 16

______ parties (f/k/a compulsory parties) are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:

a. Rule 19(a) identifies required parties, who must be joined if _________;
b. Rule 19(b) addresses what must happen when joinder _________.

Answer 16

1. required
2. feasible
3. is not feasible

Question 17

F.R.C.P 20 governs permissive joinder of parties. It permits _______________ to join in one lawsuit if:

a. each P asserts any right to relief arising out of the _________________ , ___________, or series of transactions or occurrences, ____
b. “any question of _________ common to all these persons will arise in the same action”

Rule 20 also permits ______________ to _________________ if they meet this test.

Answer 17

1. multiple Ps
2. same transaction
3. occurrence
4. and
5. law or fact
6. one or more Ps
7. join multiple Ds

Question 18

Two other requirements for naming parties to a lawsuit are:

a. _______________
b. ____________

Answer 18

a. real property in interest

b. capacity

Question 19

Procedural devices for adding multiple parties include:

a. ___________
b. _____________
c. _________
d. ___________
e. ___________

Answer 19

a. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class Action
e. Shareholders’ Derivative Suit

Question 20

The scope of discovery, both in Texas and federal courts, is all matters ________ that are ______________________

Answer 20

1. not privileged

2. reasonably calculated to lead to the discovery of admissible evidence

Question 21

The forms of discovery are:

Answer 21

• -interrogatories
• • requests to produce or inspect
• • subpoenas duces tecum
• • oral depositions
• • written depositions
• • physical & mental examinations
• • requests for admission

Question 22

Privileges shield information from discovery, such as:

Discovery exemptions have a similar effect. These include:

Answer 22

• • attorney-client privilege
• • spousal privilege
• • doctor-patient privilege
• • attorney work product exemption
• • client investigatory exemption (in Texas courts)

Question 23

The privileges and exemptions (to discovery) must be raised before the deadline for responding to that discovery request or they are _______,

Answer 23

waived

Question 24

In addition to waiver, the privileges and exemptions may have exceptions that ___________.

Answer 24

permit or require disclosure

Question 25

Devices for dismissal include:

a. ______ dismissal
b. __________ dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for ___________.

Answer 25

a. Voluntary
b. Involuntary
c. Failure to State a Claim

Question 26

A Motion for Judgment on the Pleadings may be filed by __________. In deciding the motion, the court will look only to the _____________ to determine if that pleading has stated a ____ or ______.

Answer 26

1. either P or D
2. nonmovant’s pleading
3. claim
4. defense

Question 27

F.R.C.P. 56 provides that for summary judgment, the ______ is on the _____ to show that:

a. there is no ____________, and
b. movant is _______________.

Answer 27

1. burden
2. movant
   a. genuine issue of material fact
   b. entitle to judgment as a matter of law

Question 28

One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that summary judgment motion may include _____. In addition, the court is entitled to examine other evidence in the _______, such as discovery on file with the court.

Answer 28

1. evidence

2. court record

Question 29

For summary judgment in favor of the party not having the burden of proof at trial (usually the defendant), the movant may meet the first part of the burden (no dispute of material fact) by:

a. ____________________
b. _____ portions of nonmovant’s essential fact allegations (Adickes)
c. pointing to the record, after a ______________, and alleging that non movant lacks sufficient evidence to support an _____________ of her case, upon which nonmovant has the __________________. (Celotex)

Answer 29

a. assuming all of nonmovant’s fact allegations to be true
b. negating
c. reasonable time for discovery; essential element; burden of proof at trial

Question 30

For summary judgment in favor of the party bearing the burden of proof at trail, the movant must meet the burden of proof by _____________ of the claim or defense.

Answer 30

offering evidence to establish each element

Question 31

Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to _____________, who may defeat the motion for summary judgment by:

a. ______________, or
b. _________________,

Answer 31

1. nonmovant
   a. creating a fact dispute
   b. showing that the law does not entitle movant to judgment

Question 32

In deciding the motion for summary judgment, the court must view the evidence in the _____________.

Answer 32

light most favorable to the nonmovant

Question 33

To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which ______________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.

Answer 33

reasonable minds could differ

Question 34

Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is _________ to withstand a motion for _________, that is, sufficient evidence to send the case to jury.

Answer 34

1. sufficient evidence

2. directed verdict

Question 35

If a party lacks evidence to respond to a motion for summary judgment, that party may seek _____________ under Rule 56(f).

Answer 35

additional time

Question 36

In federal court, the trial issues of law and fact are governed by a __________. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the _____________.

Answer 36

1. pretrial order

2. latest pleadings

Question 37

The process of questioning prospective jurors is called ________.

Answer 37

voir dire

Question 38

There are two kinds of challenges to prospective jurors:

____________ are based on the court’s ruling that reasonable care exists to excuse that person from jury service based on the possibility of prejudice against one of the parties, or some other bias in the case.

____________ allow the parties a limited number of “strikes” to excuse prospective jurors for no stated reason.

Answer 38

1. Challenges for cause

2. Peremptory Challenges

Question 39

Asking the court to order all witnesses other than parties to leave the room is known as ____________.

Answer 39

invoking the rule

Question 40

A defendant may move for the ____________ if he has a burden of proof on all remaining issues.

Answer 40

right to open and close

Question 41

Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in ______________ exceeding ______________ in controversy.

Answer 41

1. cases at common law

2. twenty dollars

Question 42

Parties have no constitutional right to trial by jury in _____ cases. However, the states may grant the right to jury trial in ____________ cases.

Answer 42

1. equity

2. equity

Question 43

The right to a jury trial is presumed to exist under a federal statute unless that statute _________ that right.

Answer 43

expressly excludes

Question 44

If a party fails to request a jury within the time allowed by ____________, the right to jury trial is _______.

Answer 44

1. forum law

2. waived

Question 45

After all evidence and arguments have been presented, the judge describes the applicable law to the jury in ________. If the judge instructs the jury incorrectly on an issue of law, this is ___________ even though it applies to the Jury’s function.

Answer 45

1. jury instructions

2. appealable

Question 46

If the jury is not requested, the court conducts a non-jury trial in which the judge becomes ___________.

Answer 46

the trier of law and fact

Question 47

As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict,” are both known as ________________-.

Answer 47

judgment as a matter of law

Question 48

In a jury trial, at the close of P’s evidence, D may move for a ____________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The Judge may grant it if, viewing the evidence in the __________________, a reasonable jury could not find for the P.

Answer 48

1. judgment as a matter of law

2. light most favorable to the defendant

Question 49

The judge should ________ the motion for directed verdict if:

a. a __________ could find in P’s favor, or
b. the judge wishes to let the case proceed and consider the question later.

Answer 49

1. deny

a. reasonable jury

Question 50

If the motion for judgment as a matter of law (or directed verdict) is denied, D presents his case. At the close of D’s evidence, ___________ may move for judgment as a matter of law, which may be granted if, looking at all the evidence favorable to the _____________, and only the unquestionable evidence in _________ favor, a reasonable jury could only find for movant.

Answer 50

1. Plaintiff and Defendant
2. nonmovant
3. movant’s

Question 51

After the jury has returned its verdict, the losing party may move for ____________ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within ___ days after entry of judgment. However, movant must have filed a motion for _______________ during the trail as a prerequisite.

Answer 51

1. judgment as a matter of law
2. 28
3. judgment as a matter of law

Question 52

After trial, the losing party may file a Motion for New Trial within ___________ days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:

a. ______
b. ______
c. ______
d. result contrary to the ________

Answer 52

1. 28
   a. trial error
   b. newly discovered evidence
   c. misconduct
   d. great weight of the evidence

Question 53

The Court of Appeals may reverse the trail judge’s granting of a Motion for a New Trial only if there was ______ to support the granting of a new trial.

Answer 53

no evidence

Question 54

Courts may grant a new trial, conditioned on remittitur or additur. _____________ orders a new trial unless P accepts a lesser amount of damages. _____________ orders a new trial unless the D agrees to pay extra damages. Federal law prohibits ________ as violation of the right to jury trial.

Answer 54

1. Remittitur
2. Additur
3. Additur

Question 55

A new trial may be granted for newly discovered evidence if the following conditions are met:

a. the new evidence was discovered ___________
b. the new evidence was not discoverable by ___________ prior to the first trial.
c. the new evidence is not ____________
d. the new evidence will _______________.

Answer 55

a. after the first trial
b. reasonable diligence
c. merely cumulative
d. probably produce a new result

Question 56

An exception to the “reasonable diligence” requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be a _____________.

Answer 56

grave miscarriage of justice

Question 57

Under F.R.C.P. 60(a), a party may correct __________ and other _____________ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on _______________.

Answer 57

1. clerical mistakes
2. inadvertent errors
3. newly discovered evidence or fraud

Question 58

A party may also challenge a final judgment by _____________ alleging ___________ or ____.

Answer 58

1. filing a new action
2. newly discovered evidence
3. fraud

Question 59

Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:

a. ____________ (Rule 59)
b. ______________ (Rule 60)
c. __________

One principle difference between these three is the ______ allowed for filing.

Answer 59

a. Motion for New Trial
b. Motion for relief from Judgment
c. A new lawsuit

Time

Question 60

Appellate courts primarily review _________. In order to receive appellate review, there must be plain error that was _____________ by a _________.

Answer 60

1. questions of law
2. property preserved
3. timely objection

Question 61

Appellant may preserve error by objecting at the time of the error and making known to the court:

a. the __________, or ___________, and
b. the _______ thereof

Answer 61

a. action desired; the objection to the action

b. grounds

Question 62

Appellate courts may also review the jury’s decision, but only as to the ____________, which is also a question of ____.

Answer 62

1. sufficiency of the evidence

2. law

Question 63

______ courts may review the trial judge’s Findings of Fact in a __________. The standard of review is __________.

Answer 63

1. Appellate
2. nonjury trial
3. clearly erroneous

Question 64

The four procedures for appearing before the Supreme Court are:

a. _______ 28 USC 1254(1), 1257
b. _______ 28 USC 1254(2)
c. ___________ 28 USC 1253
d. _____________ U.S. Const., Art. III 28 USC 1251

Answer 64

a. Writ of Certiorari
b. Certification
c. Direct Appeal from decisions of three judge courts
d. Original Jurisdiction

Question 65

Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:

a. ___________
b. ____________

Answer 65

a. Claim preclusion

b. issue preclusion

Question 66

Another name for preclusion is ___________

Answer 66

res judicata

Question 67

Claim preclusion includes the doctrines of _____ and ____.

Answer 67

1. merger

2. bar

Question 68

Merger applies to judgements for _____. It provides that a ____________ judgement for P (a) prevents P from suing again, except in a collection action on the judgment, and (b) bars D’s defenses in an action on the judgment.

Answer 68

1. Plaintiff

2. valid and final

Question 69

Bar applies to judgements for _______. It provides that a judgment for D _______________ on the same claim.

Answer 69

1. Defendant

2. Bars another action by Plaintiff

Question 70

The elements of claim preclusion are:

a. _________
b. _________
c. _________

Answer 70

a. same claim
b. same parties
c. valid and final judgment

Question 71

Claim preclusion does not apply to certain actions, including:

a. dismissal on grounds of _____, _____, or ______.
b. ___________-
c. where preclusion is ________
d. __________ courts (in some jurisdictions)

Answer 71

a. jurisdiction; venue; party joinder
b. nonsuit without prejudice
c. denied by statute
d. small claims

Question 72

Issue preclusion is also known as ___________.

Answer 72

collateral estoppel

Question 73

Issue Preclusion does not apply to whole lawsuits, but to:

a. issues of _________-
b. that were _______-
c. that ended in a ____________-
d. where determination of that issue was _____________ to the judgment, and
e. where the judgment is ________________

Answer 73

a. law or fact
b. actually litigated
c. valid and final judgment
d. essential
e. binding on the party being estopped

Question 74

Issue preclusion no longer requires ___________. This is also known as “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a ______ and (b) had a ___________.

Answer 74

1. mutuality of parties
2. party
3. full and fair opportunity to litigate

Question 75

The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within ____________ prior to final judgment.

Answer 75

the same lawsuit